Our View: Let the sun shine in

The subject of “work product” has reared its ugly head again with the revelation that Steamboat Springs City Manager Deb Hinsvark recently sent two emails to members of the Steamboat Springs City Council and marked the correspondence as confidential by designating them as work product.

Under the Colorado Open Meetings Law, also known as the Sunshine Law, the use of work product is allowed but limited. Work product can include advisory or deliberative materials assembled to assist officials in reaching decisions, such as preliminary drafts of documents or reports. Work product does not include any final version of a document, report or audit. Any material that previously has been labeled work product automatically becomes public once it is distributed to members of a public body for their consideration at a public meeting.

The correspondence that Hinsvark marked as work product was described to be “mundane” by several council members, but we want to make it very clear that the practice of using the work product label to keep communication confidential and away from the scrutiny of the public and the press is a serious subject.

In our opinion, Hinsvark acted unwisely and in apparent violation of direction she received from the council back in December 2012, when work product first was raised by former council member Cari Hermacinski. The video of that meeting confirms council clearly directed Hinsvark to limit the use of work product and only use it after conferring with the city attorney.

In this latest incident, it appears Hinsvark sent out the work product emails without the city attorney’s knowledge, and at Tuesday’s council meeting, when questioned about her actions, she said she was testing the waters to see if the new council would be open to receiving communications in the form of work product. She also said that since a vote on work product was not taken at the December 2012 meeting, she didn’t feel she had “clear direction” on the issue.

On Tuesday, council member Sonja Macys made a motion to vote on limiting the use of work product and tying its use to approval by the city attorney. Council member Scott Ford seconded the motion, but before a vote could be taken, council member Kenny Reisman asked that the issue be tabled until it could be discussed at this week’s council retreat in a broader context of the council’s expectations of how they want to communicate with Hinsvark moving forward. And while continued deliberation could be beneficial, we urge the current council to take deliberate action to limit the use of work product.

It is not our intent to be unreasonable, nor are we contending that the public needs to be privy to everything a city employee does. Anything preliminary in nature, and therefore considered work product, should be handled between employees and the city manager, but at the point when Hinsvark is bringing the project or issue to the council, it becomes public in our opinion, except in circumstances that would warrant a closed session under Colorado law.

Labeling correspondence or reports as work product may be legal in certain instances, but this practice ultimately takes information out of the public arena and keeps it away from the press. And the more conversations and deliberations are kept hidden from the public and press, distrust and suspicion grow.

The public has a right to know more than just how a council votes. It deserves to understand how the City Council makes its decisions, and that process should not be shielded by the use of work product. Good government fosters public engagement.

And we wholeheartedly agree with the position taken by former council member Hermacinski, who called the use of work product “insidious,” because unlike the use of executive sessions, the press and public have no way of knowing when work product is being used by the city. When executive sessions are held, they must be posted, and the reason for holding a meeting closed to the public and press must be disclosed.

This newspaper and members of the public would not have known that Hinsvark had begun using work product again unless council members Ford and Macys had raised the issue at a public meeting.

It is fitting that we are discussing open and transparent government in today’s editorial, which publishes the day before the start of Sunshine Law Week, which will be celebrated March 10 to 16 across the U.S. Its purpose is to foster a public dialogue about the importance of open government and open meetings law. This year’s theme is “Open Government is Good Government” — a simple statement that gets to the very core of government function and the public’s right to know.

The residents of Steamboat Springs deserve a city council dedicated to openness and transparency. The city is not a privately run business but an entity supported by tax dollars, and as such, city decisions must be made publicly, and the decision-making process should not be shielded from public scrutiny by the use of work product.

At Tuesday’s council retreat, we’d like to see council members continue their discussion about being open and transparent as a council and follow up with an actual vote ungirding that commitment. If the city manager needs clear direction on the subject of work product, a vote by council could not be misinterpreted and would send a strong message going forward about how this council wants city business to be conducted.

Comments

It is my understanding that a city employee labeling something as "work product" does not actually make it confidential. That any of the city council members can release it to the public and they are free to discuss it's contents to the public.

"Work product" is an exception to CORA open records to allow elected officials to get opinions from government employees without having to release that to the public and to see drafts of documents without having to release that draft to the public

But "work product" is not like material discussed in executive session which is confidential and needs a majority vote of the council to be publicly released. In fact, an executive session cannot typically be called to discuss work product because work product does not meet the standards needed to be discussed in executive session. The law states that elected officials may release "work product" in the context of individual decision making and not as an official decision by the board.

It appears that the city manager likes to label mundane memos as "confidential work product" and the city council mistakenly thinks that means that makes it top secret when, in fact, all that it means is that the city manager didn't release it to the public. But each city council members is free to release it and publicly discuss it if they wish.

The city managed LMD has also gone into executive session without first describing the subject on the public notice and having not read the Colorado statute that provides for the session. Both are required by law. Check http://steamboatsprings.net/AgendaCenter/Local-Marketing-District-3 for agendas where executive session is only generically listed.